USDC D. Minn., October 15, 2008 

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ABC, The Associated Press, CNN, CBS, Fox News Network, and NBC sought a preliminary injunction barring Minnesota’s secretary of state and attorney general from enforcing a statute that restricts exit polling during an election. Finding that plaintiffs were likely to demonstrate that the Minnesota law was a violation of their First Amendment rights, the court granted the injunction.

Minnesota Statute § 204C.06, subdivision 1 is entitled “Lingering near polling place.” The second sentence of the subdivision provides: “No one except an election official or an individual who is waiting to register or to vote shall stand within 100 feet of the building in which a polling place is located.” Violation of the statute is a misdemeanor.

Plaintiffs argued that the Minnesota law burdens political expression protected under the First Amendment. Plaintiffs have hired two organizations, Edison Media Research and Mitofsky International, to conduct exit polling at 45 selected precincts in Minnesota during the November 4 election. Exit polling is accomplished by approaching voters as they leave a polling place and asking them to complete a short, anonymous questionnaire about their voting choices. Plaintiffs argued that forcing exit poll interviewers to stand further than 100 feet away from polling places would result in less accurate data collection. This would inhibit plaintiffs’ ability to report news about the election and would corrupt data which would be used by future researchers and historians. In response, Minnesota’s secretary of state and attorney general argued that the exit polling law prevents overcrowding and disruptions at polling places.

Assessing plaintiffs’ likelihood of success on the merits, the court analyzed the second sentence of the Minnesota statute as a regulation of the time, place, and manner of expressive activity. Under the Supreme Court’s decision in Burson v. Freeman, 504 U.S. 191 (1992), such a regulation must be content neutral, be narrowly tailored to serve a significant governmental interest, and leave open ample alternatives for communication.

First, the court found that the law was neutral on its face, because it applied to the polling place itself and was not specific to the content of exit polling. However, the court also found that the Minnesota legislature’s purpose was not unrelated to suppression of free expression. The statute’s legislative history demonstrated the legislature’s intent to move persons involved in expressive activity away from polling places. Next, the court found that, although preventing overcrowding and disruption at polling places was a significant government interest, the statute was not narrowly tailored to serve this interest. The court noted that defendants had not produced evidence that there was any connection between exit polling and disruptions at the polls. Last, the court found that the statute did not leave open ample alternatives for communication, because exit poll interviewing from over 100 feet away from a polling place was not a reasonable alternative to interviewing closer.

The court concluded that all four of the factors weighed in favor of the plaintiffs. Plaintiffs had demonstrated a likelihood of irreparable harm through the possible loss of accurate and valuable voter information in the election. The balance of harms weighed against defendants, who would at worst be saddled with the inconvenience of informing election officials of the injunction. Finally, the public’s interest in unfettered debate of public issues and governmental affairs outweighed the perceived, but unproven, threat to electoral order cited by defendants.